IPBiz

Sunday, July 31, 2011

An article published in the The Journal of Physical Chemistry A, under the weighty title "Atmospheric Chemistry of Two Biodiesel Model Compounds: Methyl Propionate and Ethyl Acetate" announces a serendipitous result. A team of scientists working at the Copenhagen Center for Atmospheric Research (CCAR), at the Universityof Copenhagen, set out to study the breakdown of large molecules in the atmosphere.

Congressman John Lewis is shown. Lewis has been in Congress for a quarter century. Got to be willing to compromise. Quote leads into Tea Party, with a message of "no compromise."

The Senate sends the Speaker of the House a "Dear John" letter.

And Brian Williams talked about lessons we learned at the Capitol

Visit was on Wednesday. Boehner had to add amendment.

It's a young person's game. DC a city of former student council presidents.
The Hawk and Dove.
All offices have reminders from home states. Denny Hoyer and terrapins.
This place appears broken, but at least the coffee makers work. No time to make a Starbucks run.
Harry Reid: Boehner can't have paintings in his office because of smoke.
Bill Livinggood. Guv burn bag. One is never allowed to shoot pictures of the Senate doors.
30 television cameras brought to Hill at once.
Office of Gabbie Gifferts.
First telegraph message of Morse was from Capitol.
Shooting of reporter in 1890.
Free concerts on lawn by Marine band.
insidecongress website gives more of story.

Mike Hendricks sent an e-mail to Ogden Publications about a PR position, saying “I would be happy to submit an application, but I’d hate to be wasting your time and mine if it turns out this is some minor league position with a paltry salary.” Ogden brand manager Brandy Ernzen leaked Hendricks’ e-mails to the Bad Pitch Blog, which called his first note “the crown jewel of all bad pitches.”

First story began with a letter to Sunday Morning from Melissa Harris. Barry Peterson did the story. "Thanks for the weekly entertainment." The letter encapsulates a lifetime journey. Harris went to a Tennessee state college. Committed nine armed robberies in a period of weeks, including a Subway. Arrested in 1997 and sentenced to 20 years. Of prison, the door closes and probably won't open again. Walked out of gate in 2004. Went to college full time. Then, law school at night. Bret Gibson is part of the group. Bumps; Harris dated clients. Met Melissa through blog. Married last October. Melissa went back to college. "No, you can do it." Harris talks about life seven years after prison. The issue of victims. Jim Cosby of Tenn. Dept of Corrections. Tenn. rate of recidivism is only 1/3. David got his law degree in Dec. Then, hearing before Tenn. Bar Association. Approved to take exam; took exam last week. Darkness in life serves a purpose; redemption.

Almanac. July 31, 1928. Audiences first heard Leo the MGM lion. The almanac feature noted that a live lion was NOT used for Kubrick's 2001.

Osgood talks about pens, and introduces a Rita Braver story, recycled from a previous show (Oct. 24, 2010). New Hampshire man (Richard Binder) repairs pen. Nib doctor. A world of fountain pens. Annual Washington pen show run by Bob Johnson. Lewis Waterman invented pen with ink supply. Kareem Salem of Maryland is a collector of pens. A pen of F. Scott Fitzgerald, ivory and onyx.

Sound familiar? Songs by Jimmy Webb. Four Tops, Supremes, Linda Ronstadt, Judy Collins. "Didn't we." His first song at age 12 was later recorded by Art Garfunkle. Webb grew up in Oklahoma. His first sale was "Christmas Tree" for the Supremes. Up Up and Away by the Fifth Dimension. $600 per year to $60,000 to $600,000. By the time I get to Phoenix. Motown said no, but Glen Campbell said yes. Then, Wichita Lineman. Then, Galveston. Then, MacArthur Park. Wife Laura on "All I Know."

National debt showdown. Debt is 14.3 trillion, of which 3.6 is owed to public. 6.2 trillion is owed to federal government. 4.5 trillion is owed to foreign countries.Apple has $76 billion in the bank, more than US guv.

Marriage New York Style, first broadcast in 1988. Fee was $10. Carlos Cuevas, clerk.Various conversations depicted. Marriage chapel, room 257. Frances Mitchell, chapel supervisor. Then the story switch to 2011.

Jason Bateman. Q&A. Horrible Bosses, dark comedy about horrible bosses. "we're not scientists here." In Change Up, Bateman plays a lawyer. Started with Little House on the Prairie. Silver Spoons. Teen Wolf-2. This Can't Be Love. Arrested Development. Up in the Air. Kingdom. Father-in-law is Paul Anka.

Ben Stein on the debt crisis. Telling scene in Great Gatsby: I hate careless people. Now: A stupendous pileup of careless people. Never convincing evidence about tax cuts. Low taxes are not an American birth right. Now, many careless persons. Can kicked down the road better than an immediate train wreck. Both parties got us into this mess and both have to get us out.

Saturday, July 30, 2011

The Pittsburgh Post-Gazette ran a story on April 14, 1936 about a contest run by radio personality Eddie Cantor for the best essay on how to achieve world peace which was won by an 18 year old who copied an essay by a university president.

The Newark Evening News spotted the plagiarism, which was of Frank Kingdon, President of the University of Newark.

Eighty years later, the Newark Evening News and the University of Newark are gone, and one would likely find a university president plagiarizing someone else.

For example, http://ipbiz.blogspot.com/2009/07/tuscaloosa-news-story-mangles-facts-in.html

Friday, July 29, 2011

With the possible penalty of perjury over his head, Professor Kutler said, “My guess is he told those people the truth.”Antecedent for "his"?

The judge in the case was Royce C. Lamberth III of the Federal District Court for the District of Columbia. Lamberth was involved in the federal funding for stem cell case, and "the meaning of research."

On the merits, we reverse the district court’s decision that Myriad’s composition claims to “isolated” DNA molecules cover patent-ineligible products of nature under § 101 since the molecules as claimed do not exist in nature. We also reverse the dis- trict court’s decision that Myriad’s method claim to screening potential cancer therapeutics via changes in cell growth rates is directed to a patent-ineligible scientific principle. We, however, affirm the court’s decision that Myriad’s method claims directed to “comparing” or “analyzing” DNA sequences are patent ineligible; such claims include no transformative steps and cover only patent- ineligible abstract, mental steps.

As to standing, the CAFC noted:

Under the facts alleged in this case, we conclude that one Plaintiff, Dr. Ostrer, has established standing to maintain this declaratory judgment suit. (...) Dr. Ostrer clearly alleges a sufficiently real and imminent injury because he alleges an intention to actually and immediately engage in allegedly infringing BRCA-related activities. (...) Having found one plaintiff with standing to maintain this declaratory judgment action, see Horne v. Flores, 129 S. Ct. 2579, 2592-93 (2009), we may turn now to the merits of Myriad’s appeal of the district court’s summary judgment decision, which held all fifteen challenged composition and method claims invalid under § 101.

Of the major issue:

In this case, Plain- tiffs conclude that because isolated DNAs retain the same nucleotide sequence as native DNAs, they do not have any “markedly different” characteristics. Furthermore, ac- cording to Plaintiffs, the isolated DNA claims also have a preemptive effect, excluding anyone from working with the BRCA genes.

The government as amicus curiae does not defend the PTO’s longstanding position that isolated DNA molecules are patent eligible, arguing instead for a middle ground. Specifically, the government argues that DNA molecules engineered by man, including cDNAs,5 are patent-eligible compositions of matter because, with rare exceptions, they do not occur in nature, either in isolation or as contiguous sequences within a chromosome. In contrast, the government asserts, isolated and unmodified genomic DNAs are not patent eligible, but rather patent-ineligible products of nature, since their nucleotide sequences exist because of evolution, not man. (...)

In sum, although the parties and the government appear to agree that isolated DNAs are compositions of matter, they disagree on whether and to what degree such molecules fall within the exception for products of nature. As set forth below, we conclude that the challenged claims to isolated DNAs, whether limited to cDNAs or not, are directed to patent-eligible subject matter under § 101.

AND

The distinction, therefore, between a product of na- ture and a human-made invention for purposes of § 101 turns on a change in the claimed composition’s identity compared with what exists in nature. Specifically, the Supreme Court has drawn a line between compositions that, even if combined or altered in a manner not found in nature, have similar characteristics as in nature, and compositions that human intervention has given “mark- edly different,” or “distinctive,” characteristics. Id. Hartranft, 121 U.S. at 615; see also Am. Fruit Growers v. Brogdex Co., 283 U.S. 1, 11 (1931). Applying this test to the isolated DNAs in this case, we conclude that the challenged claims are drawn to patentable subject matter because the claims cover molecules that are markedly different—have a distinctive chemical identity and na- ture—from molecules that exist in nature.

AND

Isolated DNA, in contrast, is a free-standing portion of a native DNA molecule, frequently a single gene. Isolated DNA has been cleaved (i.e., had covalent bonds in its backbone chemically severed) or synthesized to consist of just a fraction of a naturally occurring DNA molecule. For example, the BRCA1 gene in its native state resides on chromosome 17, a DNA molecule of around eighty million nucleotides. Similarly, BRCA2 in its native state is located on chromosome 13, a DNA of approximately 114 million nucleotides. In contrast, isolated BRCA1 and BRCA2, with introns, each consists of just 80,000 or so nucleotides. And without introns, BRCA2 shrinks to just 10,200 or so nucleotides and BRCA1 to just around 5,500 nucleotides. Furthermore, claims 5 and 6 of the ’282 patent cover isolated DNAs having as few as fifteen nucleotides of a BRCA sequence. Accordingly, BRCA1 and BRCA2 in their isolated state are not the same mole- cules as DNA as it exists in the body; human intervention in cleaving or synthesizing a portion of a native chromo- somal DNA imparts on that isolated DNA a distinctive chemical identity from that possessed by native DNA.

Linus Pauling comes up:

The dissent disparages the significance of a “chemical bond,” presumably meaning a covalent bond, in distinguishing structurally between one molecular species and another. But a covalent bond is the defining boundary between one molecule and another. The dissent’s citation of Linus Pauling’s comment that covalent bonds “make it convenient for the chemist to consider [the aggregate] as an independent molecular species” underlines the point. The covalent bonds in this case separate one chemical species from another.

The CAFC dispenses with the district court opinion AND "the magic microscope" :

The district court in effect created a categorical rule excluding isolated genes from patent eligibility. See SJ Op., at 228-29. But the Supreme Court has “more than once cautioned that courts ‘should not read into the patent laws limitations and conditions which the legislature has not expressed,’” Bilski, 130 S. Ct. at 3226 (quot- ing Diamond v. Diehr, 450 U.S. 175, 182 (1981)), and has repeatedly rejected new categorical exclusions from § 101’s scope, see id. at 3227-28 (rejecting the argument that business method patents should be categorically excluded from § 101); Chakrabarty, 447 U.S. at 314-17 (same for living organisms). We therefore reject the district court’s unwarranted categorical exclusion of isolated DNA molecules.Because isolated DNAs, not just cDNAs, have a mark- edly different chemical structure compared to native DNAs, we reject the government’s proposed “magic microscope” test, as it misunderstands the difference between science and invention and fails to take into account the existence of molecules as separate chemical entities.

In partial dissent, Judge Bryson noted:

I respectfully dissent, however, from the court’s holding that Myriad’s BRCA gene claims and its claims to gene fragments are patent-eligible. In my view, those claims are not directed to patentable subject matter, and if sustained the court’s decision will likely have broad consequences, such as preempting methods for whole- genome sequencing, even though Myriad’s contribution to the field is not remotely consonant with such effects. (...) The essence of Myriad’s argument in this case is to say that it has not patented a human gene, but something quite different—an isolated human gene, which differs from a native gene because the process of extracting it results in changes in its molecular structure (although not in its genetic code). We are therefore required to decide whether the process of isolating genetic material from a human DNA molecule makes the isolated genetic mate- rial a patentable invention. The court concludes that it does; I conclude that it does not.

Of Linus Pauling: A chemical bond is merely a force between two atoms or groups of atoms strong enough “to make it convenient for the chemist to consider [the aggregate] as an independent molecular species.” Linus Pauling, The Nature of the Chemical Bond 6 (3d ed. 1960).

Lithium comes up: The government as amicus curiae argues that patenting the BRCA genes would be like patenting the element lithium. Isolated lithium does not occur naturally because it reacts with air and water and thus is found in nature only as part of a chemical compound, ionically bound to other elements. Robert E. Krebs, The History and Use of Our Earth’s Chemical Elements 48 (2d ed. 2006). Once isolated, lithium has many industrial applications, and in order to isolate lithium, it is necessary to break ionic bonds in the lithium compounds that are found in nature. But the majority acknowledges that elemental lithium (like other ele- ments) would not be patentable subject matter because it “is the same element whether it is in the earth or iso- lated.”

AND

The majority, however, does not agree that the cases are analogous, and indeed appears to have adopted the following rule: Isolated atoms are not patent eligible, but isolated molecules are.

Apart from the arbitrariness of such a rule, if we are to apply the conventional nomenclature of any field to determine whether Myriad’s isolated DNA claims are “new,” it would seem to make more sense to look to genetics, which provides the language of the claims, than to chemistry.

Of the USPTO:

First, as we have recognized, the PTO lacks substantive rulemaking authority as to issues such as patentability. Animal Legal Def. Fund v. Quigg, 932 F.2d 920, 930 (Fed. Cir. 1991). In areas of patent scope, we owe deference only commensurate with the “the thoroughness of its consideration and the validity of its reasoning.” Merck & Co. v. Kessler, 80 F.3d 1543, 1550 (Fed. Cir. 1996). The comments that the PTO issued at the time of its 2001 guidelines in response to suggestions that isolated human genes were not patentable are, frankly, perfunctory. See John M. Conley & Roberte Makowski, Back to the Future: Rethinking the Product of Nature Doctrine as a Barrier to Biotechnology Patents, 85 J. Pat. & Trademark Off. Soc’y 301 (2003). Because those comments, at least on their face, do not reflect thorough consideration and study of the issue, I do not regard them as worthy of much weight in the analysis of this complex question.

We take a different approach. Rather than try to cut through the complexity of Bilski, or predict how it will be applied, we talk about how to avoid it. We are interested in minimizing the cost and confusion that accompany a review of patents for § 101 subject-matter eligibility.2 We propose that the § 101 issue of Bilski be considered only when doing so is absolutely necessary to determine the validity of a claim or claims in a patent. We believe any claim that can be invalidated under one of the less controversial and less complex requirements for patentability—§§ 102, 103, and 112, for instance—ought to be disposed of without considering subject matter patentability.3 In other words, the Bilski issue should be avoided wherever it is not strictly necessary. To support this conclusion, we present a set of empirical data that indicates that the vast majority of patent claims challenged on subject matter eligibility grounds were also challenged on other patentability grounds.

Thursday, July 28, 2011

LBE's point is that the Smalley group, with Sir Harry Kroto, did not invent OR discover,buckminsterfullerene. A scientific paper was published (in JCP) one year before the Smalley articlein JACS which JCP article disclosed C60 and a way to make it.

LBE would agree with: I support the comment of Lawrence B. Ebert in that the claim of discovery of a molecule, whether self-promoted, bestowed by an internationally renown entity, or posted by a graduate student in a blog, does not warrant issuance of a patent.

LBE notes that, in fact, there was no patent issued on the composition of C60 (buckyball).

Bloomberg reports on July 29: Google Inc., facing a growing threat of intellectual-property lawsuits, acquired a batch of patents this month from International Business Machines Corp. (IBM) to bolster its portfolio.

But Google's Kent Walker was quoted: “Software patents are kind of gumming up the works of innovation.”

Meanwhile, the University of North Carolina announced football coach Butch Davis’ firing Wednesday, July 27, after the damage caused by an NCAA investigation into the McAdoo matter. See UNC fires coach Butch Davis

Wednesday, July 27, 2011

About one year ago, en banc rehearing was denied in Novo Nordisk v. Caraco :

Defendants-Appellees Caraco Pharmaceutical Labora- tories, Ltd. and Sun Pharmaceutical Industries, Ltd. (“Caraco and Sun”) filed a combined petition for panel rehearing and rehearing en banc. The panel invited a response from Plaintiffs-Appellants Novo Nordisk A/S and Novo Nordisk, Inc. The court granted leave to file briefs amici curiae to Teva Pharmaceuticals, USA, Inc., Mylan Pharmaceuticals Inc., Apotex Inc. and Impax Laborato- ries, Inc., Consumer Federation of America and National Legislative Association on Prescription Drug Prices, and Generic Pharmaceutical Association.The petition for rehearing was considered by the panel that heard the appeal, and thereafter the petition for rehearing en banc, the response to the petition, and briefs amici curiae were referred to the circuit judges who are authorized to request a poll on whether to rehear the appeal en banc. A poll was requested, taken, and failed.

There was a dissent to the denial:

The background and facts of this case are well laid out in Judge Dyk’s dissent in the original panel decision. See Novo Nordisk A/S v. Caraco Pharm. Labs., Ltd., 601 F.3d 1359, 1370-78 (Fed. Cir. 2010) (Dyk, J., dissenting). As the dissent explains, the majority’s opinion adopts an overly narrow construction of “patent information” and an overly broad construction of “an approved method of using the drug.” See id. at 1370-72, 1376-78. Both construc- tions are irreconcilable with pre-existing FDA regulations, the text of the HWA, and Congressional intent. See id. at 1370-78. I believe rehearing the case en banc is necessary to rectify these improper constructions.

Upon consideration thereof,IT Is ORDERED THAT:The motion is granted. The parties are directed to in- form this court, within 14 days of the Supreme Court's disposition of Caraeo, concerning how they believe this appeal should proceed.

Tuesday, July 26, 2011

Legal experts told the [New York] Times that explicitly barring unemployed people from applying does not qualify under the statutory definition of discrimination, since unemployment is not a federally protected status like age or race. But the Equal Employment Opportunity Commission recently set out to establish whether employers were discriminating against certain protected groups because they are overrepresented in the ranks of the unemployed, such as African-American and older workers. (We covered that meeting here.) New Jersey recently passed a law barring employment ads that seek to rule out applications from those who are unemployed.

Even if the practice of weeding out unemployed applicants doesn't fit the legal definition of discrimination, it sure feels unfair for the more than 6.3 million Americans who have been out of work for more than six months to be told they are automatically disqualified for the few openings that are out there. "I feel like I am being shunned by our entire society," Kelly Wiedemer, an unemployed information technology specialist, told the Times.

Where, as here, the parties stipulate to noninfringement and invalidity after a claim construction ruling, the court “need only address the district court’s construction of the claims.” See Altiris, Inc. v. Symantec Corp., 318 F.3d 1363, 1368 (Fed. Cir. 2003). We review claim con- struction de novo. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1456 (Fed. Cir. 1998) (en banc). To interpret the claims, we look first to the intrinsic evidence in the record, including the claim language, the written descrip- tion, and the prosecution history. Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). Although it is less significant than intrinsic evidence, a court can consider extrinsic evidence in the record, which “consists of all evidence external to the patent and prose- cution history, including expert and inventor testimony, dictionaries, and learned treatises.” Phillips v. AWH Corp., 415 F.3d 1303, 1317 (Fed. Cir. 2005) (en banc) (citation omitted).

The outcome:

The parties agree that the Consent Judgment must stand unless this court disagrees with the district court’s construction of: (1) the function and structure for the “means for monitoring the credit;” and (2) the structure for the “means for coupling.”6 We address each limitation in turn. Because we agree with the district court’s con- struction of the “means for monitoring the credit,” the Consent Judgment is affirmed as it relates to noninfringement. For the reasons discussed below, however, we vacate the portion of the Consent Judgment finding Claim 9 invalid as indefinite.

Footnote 6:

At oral argument, counsel for Aerotel noted that: “Aerotel needs to win on both issues on appeal so if you rule against us on either one then we lose.” Oral Argu- ment at 14:00, available at http://www.cafc.uscourts.gov/oral-argument- recordings/2010-1515/all. Similarly, Telco’s brief ex- plained that, if the court agrees with the district court’s construction on either the “means for coupling” or the “means for monitoring the credit,” then the Consent Judgment must be affirmed. Appellees’ Br. at 19.

Of the reversal:

We find that, based on Figure 3 and the corresponding description in the specification, a person of ordinary skill in this field would know that the “regular telephone system” performs the coupling function. At a minimum, Telco did not meet its burden of showing by clear and convincing evidence that a person of ordinary skill in the art would be unable to identify the disclosed structure, which is, standing alone, sufficient to warrant reversal of the district court’s construction. See Budde, 250 F.3d at 1376-77. Accordingly, we find that the district court erred in concluding that the ‘275 Patent does not disclose a structure corresponding to the “means for coupling.” As such, the district court’s conclusion, which rendered Claim 9 invalid as indefinite, is reversed.

In sum, we hold that the Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art. Because Lovin did not provide such arguments, the Board did not err in refusing to separately address claims 2–15, 17–24, and 31–34.

Footnote 9 gave support:

See, e.g., Ex Parte Pea, No. 2008-005064, 2010 WL 373841 at *5 (B.P.A.I. Feb. 2, 2010) (where the appellants had reiterated the claim language found in certain dependent claims and stated that “[the prior art reference] does not disclose this aspect of the invention,” the Board held that “a statement that merely points out what a claim recites is not a separate argument for patentabil- ity”); Ex parte Carlsson, No. 2007-2475, 2007 WL 4219726 at *6 (B.P.A.I. Nov. 29, 2007) (holding that “a recitation of what each claim state[d]” along with a “bald assertion, unsupported by specific arguments, that the claimed limitations [were] not disclosed in any proper combination of the prior art” was not a sufficient argument for sepa- rate patentability); Ex parte Portnoy, No. 2004-1461, 2005 WL 951657 at *2 (B.P.A.I. 2005) (where the appellant had “baldly asserted that the prior art [did] not teach or suggest the features of the[ ] claims,” the Board held that “[p]ointing out what the claim requires with no attempt to point out how the claims patentably distinguish over the prior art does not amount to a separate argument for patentability”).

Footnote 8 foreshadowed the outcome:

In a recent paper, Chief Administrative Patent Judge Michael Fleming and three other judges from the Board directly addressed this point:8Appellants will sometimes include separate subheadings for dependent claims, but [if] the . . . argument . . . merely states that the rejection should be reversed because the prior art does not disclose element x, where element x is merely a quote of the claim language, [and] [t]his argument fails to include any explanation of why the art doesn’t show element x or why the examiner’s find- ing that the art does show element x is in error, [t]he panel will usually not treat such an argu- ment as an argument for separate patentability of the dependent claim.Fleming, Michael et al., Effective Appellate Advocacy in Ex Parte Appeals Before the Board of Patent Appeals and Interferences 4–5 (Apr. 2010) (emphasis added).

Of interest are the citations in the text:

Because the court in Beaver could not and did not address the current version of the Rule containing the “merely pointing out” language, it cannot be a binding interpretation of the current rule’s requirements. See Sacco v. United States, 452 F.3d 1305, 1308 (Fed. Cir. 2006) (find- ing that a prior case “is not binding precedent on [a] point because the court did not address the issue” in that prior case); Boeing N. Am., Inc. v. Roche, 298 F.3d 1274, 1282 (Fed. Cir. 2002) (“[W]e are not bound by [a prior opinion] on the issue . . . since [that] issue was neither argued nor discussed in our opinion.”).

Yes, Chevron came up:

In National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967, 982 (2005), the Supreme Court examined whether the stare decisis effect of an appellate court’s interpretation would foreclose Chevron deference to an agency’s subsequent, but contrary, interpretation of a statute. The Court held that a judicial interpretation would trump an agency’s construction only if the judicial precedent “unambiguously foreclose[d] the agency’s interpretation, and therefore contain[ed] no gap for the agency to fill.” Id. at 982; see also Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The principles in National Cable apply equally to an agency’s interpretation of its own regulations. See Levy v. Sterling Holding Co., LLC, 544 F.3d 493, 502 (3d Cir. 2008) (holding that National Cable requires deference to the Security and Exchange Commission’s amendments to a regulation over a prior contrary judicial interpreta- tion); see also Udall, 380 U.S. at 16–17 (“When the con- struction of an administrative regulation rather than a statute is in issue, deference is even more clearly in order.”). Thus, we are obligated to follow our earlier judicial decisions—in the face of a new agency interpreta- tion—only if we had found that the language in that decision “unambiguously foreclose[d]” the Board’s inter- pretation. Nat’l Cable, 545 U.S. at 982.

AP quoted a New Jersey attorney: "It's a fundamental principal of New Jersey law that anything that is 'clearly exculpatory' should have been included in the presentation to the grand jury. But it's a little fuzzy over what constitutes 'clearly exculpatory.'"

The AP story also addresses the fate of the other Rutgers student involved in the Clementi matter:

[Molly] Wei later agreed to testify against Ravi in exchange for being spared a trial and having her charges eventually dropped if she complies with certain conditions.

Recall that the basic charge was invasion of privacy of Tyler Clementi.

The possibility of time travel was raised 10 years ago when scientists discovered superluminal -- or faster-than-light -- propagation of optical pulses in some specific medium, the team said.It was later found to be a visual effect, but researchers thought it might still be possible for a single photon to exceed light speed.Du, however, believed Einstein was right and determined to end the debate by measuring the ultimate speed of a single photon, which had not been done before.

LBE's original article titled Anatomy of a Superluminal Technical Story appears on the ReedSmith website, without attributing authorship to LBE. The scientific work by Lijun Wang in 2000 originated from NEC labs in New Jersey and was published in Nature.

One wonders if there will be an update to Kitta MacPherson, "Lab test exceeds speed of light," Newark Star-Ledger, p. A1 (July 20, 2000).

If this legislation is enacted, the USPTO will need to undertake a series of rulemakings to implement the Act. Because several provisions of the AIA require implementation within a period of one year from enactment, expeditious rulemaking proceedings will be required. Given this tight time frame, preliminary input from our stakeholders and the public on implementation of the key provisions would facilitate this process even before the legislation has been enacted.

(...)

If you wish to submit comments, we ask that you submit your comment to the attention of the contact person for that area (see below) and reference in the subject line one of the five topic areas and the specific issue addressed in the comment. Comments submitted by email are preferred and may be addressed to aia_implementation@uspto.gov. Comments may also be mailed to Mail Stop Comments-Patents, Commissioner for Patents, P.O. Box 1450, Alexandria, VA 22313–1450, marked to the attention of Hiram Bernstein. Comments will be posted on the USPTO website. We recommend that you do not include information, such as an address or phone number, that you do not want to be made public.

Monday, July 25, 2011

Custer, Madisonville, and The Undefeated

The Battle for El Camino Real is a great event in Madisonville, Texas co-hosted by our friends in the Terry's Texas Rangers and White's Battery. Located along the King’s Highway (El Camino Real) this historically fictitious battle depicts what might have happened had Federal troops penetrated into Texas and attempted to disrupt commerce in the state. This is a fun event set along Lake Madison. There is a school day on Friday with a skirmish and then battles on Saturday and Sunday. The event also provides a good dinner and dance on Saturday night. From I-45 either direction, exit HWY 21 West, take a right on East Collard, then a right on East Shipp, which will take you to the park entrance on the right.

Sunday, July 24, 2011

CBS Sunday Morning on July 24, 2011

Charles Osgood introduced the stories for CBS Sunday Morning on July 24, 2011. The terror in Norway still dominates the world's headlines. Jeff Glor is in Norway. The shock and the grief in Norway. Steve Hartman does "Hot and cold." Jim Axelrod does "Still Believin'" on Journey. A story on ants: "Small Wonders." Martha Teichner on Cirque de Soleil. Fast draw on humidity.

Headlines: national day of morning in Norway. Rooler World in Grand Prairie, Texas. Temps cooling off in the east. Urban areas tend to hold onto the heat. Re-enactment of Battle of Bull Run. Rain in Chicago. Congressional leaders working on debt talks. Framework for Congress. Amy Winehouse found dead. Former Chief of Staff died at age 75. New York legalized same sex marriage.

Fine print on today's weather: somewhat cooler in northeast.

Sunday Morning started with the terror in Norway with Jeff Glor in Oslo. Island of Utoeya. Explosion in Oslo on Friday afternoon; then shooting on the island. Prime minister promises Norwegian way of life won't change; Glor noted: it already has.

Almanac: July 24, 1911: Yale University explorer Hiram Bingham arrived at Machu Picchu. Pictures currently on display at Smithsonian. No cement or mortar used in the buildings. Movie: Secret of the Incas, with Charlton Heston. The Simpsons.

The first real story was "Small Wonders" on ants, starting in the country of Belize. Several hundred species of ants in Belize. Sound of howler monkey. Leaf cutter ant. Jaws contain zinc. Portable can opener. Car pooling ants. Fungus eating ants. Picture of farm fresh fungus. Suicide bomber ants; toxic yellow glue. Deborah Gordon of Stanford. Virtually any ant you see is a female. Most ants simply following the crowd. Southwest Airlines, Doug Lawson is systems analyst. Computer simulated ants produced "open seating." Argument: in assigned seating, two people will have to get up, but in open seating, only 1 (the aisle) has to get up to allow access to the middle. Ants aren't smart, but they are efficient. It pays to be individually stupid.

Next, Amy Winehouse found dead. Anthony Mason does story. Brian Hyatt of Rolling Stone: a legend in the making. In 2008, first British woman to bring home five Grammys in one night.

July 24, 2010: Ridley Scott. "Life in a Day" Rise and Shine.

The Circus of the Sun. Cirque du Soleil. Done by Martha Teichner. Radio City Music Hall. $50 million budget. 6000 seats need to be filled every night. Francois Gerard. Rehearsing in Orlando, FL. So far, 100 million tickets since 1984. Banana-spiel, previously, was a flop. In 2009, Canada's first space tourist. Worldwide: 5000 employees. A cast of head of each performer. By end of year, 22 different productions running simultaneously. No saturation of the brand. (IP matter!) Iris in Kodak Theater in Los Angeles.

The heat goes on. The fast draw. Humidity is a balancing act. Water in the air. Better gas mileage. Epiphytes. 1200 gallons floating by every second [?] Dropping temperatures trigger rain. Average global humidity has been increasing. Maybe it's not the heat it's the humidity.

Life in a day; birthday. Giraffe birth. Photographer passing out during birth.

Thirty years after Don't Stop Believin'. Jim Axelrod. The most downloaded song in the 20th century. 1998: the Wedding Singer. Glee. Adam Anders spoke of the finale to Glee's premier: Viva la vida was wanted, but permission to use it was denied.Everyman's Journey. Eclipse: city of hope.

Opinion. Tavis Smiley. You never hear discussion about poverty in current budget debate. Turn a blind eye to chasm between haves and havenots. The new poor are the former middle class. More and more children are among the poor. No cards in the deck stacked against them already. In 1968, RFK tour of poverty.

Life in a day. What do you love? Placing my feet in wet sand. (..) I love my Lord. (..) football. (..) refrigerator.

Lucien FreudLucien Freud died Wednesday at age 88. Painted urban landscapes, but was known for his nudes (naked people). Vulnerable people who seem vulnerable in their nakedness. The lumpiness of real life.

Do you miss winter in summer? 59% said NO. Steve Hartman on hot vs. cold. How easily we forget? Welcome back to the dead of winter. The last two winters were the two coldest in a quarter century. The grass is always greener. Humans are comfortable only between 68 and 78F.

Friday, July 22, 2011

DURAMED PHARMACEUTICALS, INC. (NOW KNOWN AS TEVA WOMEN’S HEALTH, INC.), plaintiff-appellant, lost before the CAFC. At issue were claims of U.S. Patent 5,908,638 (“’638 patent”), which was directed to conjugated estrogen pharmaceutical compo- sitions for use in hormone replacement therapies.

The district court did not consider Paddock’s re- maining pre-1998 articles based on Duramed’s claim that a bench trial would be necessary to determine if the 1995 “Manufacturing Chemist” article was publicly available in a university library and if the conference articles were actually distributed to the attendees. Id. at 561 n.8. The court concluded that these articles were not necessary to establish foreseeability. Id.

AND footnote 2 notes:

We disagree that there is a genuine issue of material fact on the public availability of an article published in a scientific journal three years before Duramed’s amendment. See, e.g., In re Lister, 583 F.3d 1307, 1312 (Fed. Cir. 2009).

Foreseeability was at issue:

Because during prosecution Duramed narrowed the scope of the ’638 patent’s claims in response to a prior art rejection, a presumption of prosecution history estoppel applies. See Festo IX, 344 F.3d at 1366-67. Nonetheless, Duramed may rebut that presumption by showing, inter alia, the “alleged equivalent would have been ‘unforesee- able at the time of the amendment and thus beyond a fair interpretation of what was surrendered.’” Id. at 1369 (quoting Festo VIII, 535 U.S. at 738). “[A]n alternative is foreseeable if it is disclosed in the pertinent prior art in the field of the invention. In other words, an alternative is foreseeable if it is known in the field of the invention as reflected in the claim scope before amendment.” Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 493 F.3d 1368, 1379 (Fed. Cir. 2007) (“Festo X”). Foreseeability is a question of law based on underlying issues of fact. Id. at 1375.

Of the outcome:

We agree with Paddock that Duramed failed to rebut the presumption of prosecution history estoppel based on unforeseeability. We first note that, to the extent that Duramed argues that foreseeability requires that PVA must have been known as an MBC for use with conju- gated estrogens, we have previously rejected such a re- strictive definition of the field of invention. See Schwarz Pharma, Inc. v. Paddock Labs., Inc., 504 F.3d 1371, 1377 (Fed. Cir. 2007).

AND

foreseeability does not re- quire such precise evidence of suitability. See Honeywell Int’l, Inc. v. Hamilton Sundstrand Corp., 523 F.3d 1304, 1312-13 (Fed. Cir. 2008). And even if the PCT disclosure indicates that PVA is less than ideal in some pharmaceu- tical uses as an MBC, it is still disclosed to be useful as such, and that renders it foreseeable for purposes of prosecution history estoppel. Foreseeability does not require flawless perfection to create an estoppel.

Thursday, July 21, 2011

The Joint POW/MIA Accounting Command on Oahu, charged with identifying Americans who were killed in action but were never brought home, has been asked to determine who the skull belongs to. The cranium was turned over to the command's lab for tests that will include examining dental records and DNA, said John Byrd, the lab's director and a forensic anthropologist."We're working on the case but the case is just in the early stages of analysis," he said. "We're not going to know much more about it for a while yet."

The lab is the only accredited Skeletal Identification Laboratory in the United States. JPAC has identified more than 560 Americans since the command was activated in 2003. When more information is gleaned from the skull, other agencies could get involved including the Naval Criminal Investigative Service and the Japanese Consulate.

Wednesday, July 20, 2011

Bhavin Mehta's defamation suit against Ohio University is back in business.

AP reported on 20 July 2011:

An Ohio Court of Claims judge threw out Mehta's lawsuit in 2009 when he ruled the report amounted to opinions that were protected speech under the Ohio Constitution. The Athens Messenger reports the appeals court disagreed this week and overturned the earlier decision, saying the report's findings were presented as fact and not opinion.

The underlying events relate to plagiarism within theses at Ohio University.

If Android’s mounting patent issues are a concern, Google Chairman Eric Schmidt isn’t letting on. He dismissed the growing patent issues as "legal fun" at a Google mobile event in Tokyo and called out competitors for their propensity to litigate instead of innovate.

Tuesday, July 19, 2011

Infringement suit against Adobe

from a press release:

Los Angeles, CA --- July 19, 2011 --- RPost, the inventor of Registered Email® services and a pioneer of electronic signature services announced today that it has brought suit against Adobe related to the electronic signature services provided by EchoSign which Adobe announced it acquired on July 18, 2011. This suit is about Adobe’s acquired EchoSign electronic signature services that RPost has determined relies on RPost patented technology. RPost has brought suit for infringing five of RPost’s United States patents – patent numbers 6,182,219; 6,571,334; 7,707,624; 7,865,557 and 7,966,372. RPost has asked the US Federal Court to issue an injunction against Adobe to prevent further damages.

Affinity credit cards

The Courier-News on July 18, 2011 had a story Colleges earn money on credit card deals." The story stated that Rutgers earned $532,637 last year on 5,342 cards. IPBiz notes that is about $100 per card per year. Enrollment at Rutgers is abov 40,000, so roughly 10,000 per class.

News.yahoo has the following story about Bette Midler complaining about Lady Gaga:

But Bette Midler called Gaga a copycat on Twitter. The beef is about a wheelchair-bound mermaid character that Gaga unveiled at a concert in Sydney last week. It turns out that Midler had performed in an almost identical getup for millions of fans three decades ago, while playing her alter-ego character named Delores DeLago. This weekend Midler fired off a series of critical tweets to the pop star, saying, "I've been doing the mermaid in a wheelchair since 1980. You can keep the meat dress." In case you're wondering, Gaga was "born this way" in 1986. Gaga's 11 million Twitter followers didn't like the cracks at their Mother Monster and said Gaga did the mermaid look better. When asked about the copycat accusations, Lady Gaga told Access Hollywood's Billy Bush, "I had no idea that she did that and I'm a huge Bette Midler fan...Maybe we're just cut from the same cloth. I couldn't hop around in that tail so I just stuck myself in a wheelchair." Midler also toned down her message. She tweeted to Gaga, "Fabulous mermaids can co-exist."

If, hypothetically, Midler had "patented" her wheelchair-bound mermaid "invention" in 1980, the patent would have run out in 1997, and everyone on this planet, including Lady Gaga, could use the invention free and clear.

One notes that Lady Gaga sounded like a typical snagged infringer: "I had no idea that she did that."

The News & OBserver begins its editorial on the McAdoo plagiarism matter:

The worst academic/athletic scandal in 50 years continues to linger at the University of North Carolina at Chapel Hill, and the clouds are darkening as more information is revealed. The revered university is paying a dear price indeed for bending to sports boosters' burning desire for a big-time football program.

The editorial asks a good question: how come the professor who received McAdoo's paper did not recognize the rather obvious plagiarism?

Or, in the case of Glenn Poshard at SIU, how come the thesis committee didn't recognize plagiarism in Poshard's Ph.D. thesis?

**UPDATE, 3 Aug 2011

Thief steals files at UNC : Someone broke into the student judicial system office of the University of North Carolina and stole the "sensitive confidential records of 31 students," university authorities confirmed.

Reuters noted that Rolls-Royce and Pratt &, Whitney (owned by United Technologies Corp) have dropped patent infringement lawsuits filed against each other over disputes surrounding Rolls' Trent 900 and 1000 engines and the GP7200 engine, developed by P&W and General Electric .

"We have reached an amicable, confidential settlement agreement resulting in dismissal of all patent litigation between the parties," a Rolls-Royce spokesman told Reuters.

From within an article in the New York Times titled Law School Economics: Ka-Ching!, relating to New York Law School [NYLS]:

N.Y.L.S. is ranked in the bottom third of all law schools in the country, but with tuition and fees now set at $47,800 a year, it charges more than Harvard. It increased the size of the class that arrived in the fall of 2009 by an astounding 30 percent, even as hiring in the legal profession imploded. It reported in the most recent US News & World Report rankings that the median starting salary of its graduates was the same as for those of the best schools in the nation — even though most of its graduates, in fact, find work at less than half that amount.

AND

N.Y.L.S. has participated in another national law school trend: the growth in the number of enrollees. Last year, law schools across the country matriculated 49,700 students, according to the Law School Admission Council, the largest number in history, and 7,000 more students than in 2001. N.Y.L.S. grew at an even faster clip. In 2000, the year Mr. Matasar took over, the school had a total of 1,326 full- and-part-time students. By 2009, the figure had risen to 1,596.

AND

From 1989 to 2009, when college tuition rose by 71 percent, law school tuition shot up 317 percent.

There are many reasons for this ever-climbing sticker price, but the most bizarre comes courtesy of the highly influential US News rankings. Part of the US News algorithm is a figure called expenditures per student, which is essentially the sum that a school spends on teacher salaries, libraries and other education expenses, divided by the number of students.

Though it accounts for just 9.75 percent of the algorithm, it gives law schools a strong incentive to keep prices high. Forget about looking for cost efficiencies. The more that law schools charge their students, and the more they spend to educate them, the better they fare in the US News rankings.

AND, bottom line salary figures for NYLS:

“In these materials and in our conversations with students and applicants,” he wrote, “we explicitly tell them that most graduates find work in small to medium firms at salaries between $35,000 and $75,000.”

AND a final quote:

“My salary,” Mr. Campos said, “is paid by the current structure, which is in many ways deceptive and unjust to a point that verges on fraud. But as a law professor, I understand that what is good for me is that the structure stay the way it is.”

***From an interview with Matasar in NLJ on 26 July 2011:

As far as experimentation, our program is quite different. We do things that lots of university-based law schools would never do. We have a program that's directed toward our bottom-graded students that helps them get across the finish line and pass the bar exam. No schools, when we started, were doing this. We require the program. We staff it differently. We just brought in 15 first-year full-time faculty to teach a consolidated legal skills program in coordination with the other first-year classes. These are not rookie people right out of law schools. These are experienced, practicing lawyers making this their full-time job. That's a skills-training move that very few university-based law schools could do because they have the university telling them everybody has to be a research faculty member.

In terms of costs, we would push the envelope as far as we could with distance learning, and we've done that, but we can't go any further than what the regime [ABA] permits. We've got proposals to move to a two-year undergraduate program with a three-year J.D. follow-on for a total of five years, but we can't do that without ABA permission. There are things we are pushing all the way to the limit as an attempt to try things that will be more radical.

At the same time, the students who currently exist at New York Law School don't want to be at a school that is the Pariah College of Law and looks so different from every other law school that they feel they are at a disadvantage.

Shareholders are bailing out as well. Bill Miller, the Legg Mason Inc. fund manager who buys beaten-down stocks he thinks will rebound, sold off his holdings in Kodak in the six months ended April 30 after more than a decade of betting on a rebound.

The company's shares fell 8% to $2.52 in 4 p.m. composite trading Monday on the New York Stock Exchange, their lowest level in more than two years.

"The core business model didn't improve off of a cyclical bottom, and now the environment is even more challenging, and they have debt coming in 2013," said Ananda Baruah, an analyst with Brean Murray, Carret & Co. The market, he said, is asking, "Where's the cash going to come from?"

Kodak was a pioneer in amateur photography but got caught on the wrong side of the revolution in digital technology, which put high-quality cameras into virtually every advanced cellphone and replaced film with electronic memory.

The history of significant innovation in this country is, contrary to popular myth, a history of incremental improvements generally made by a number of different inventors at roughly the same time. Our patent system, by contrast, is designed for a world in which one inventor of extraordinary skill does something no one else could have done.

We all seem to agree that Chester Carlson's xerography was not an incremental improvement. Nor was the transistor. Nor was the Wrights' wing warping. Edison's work didn't follow from Sawyer and Mann. Seems like Lemley's first "conclusion" is factually wrong. Our patent system does not require an inventor be of extraordinary skill. It does require inventions that are novel and not obvious.

Sunday, July 17, 2011

In a post titled Ocular diagnosis of Alzheimer's disease , MARILYNN MARCHIONE of AP wrote of work by Australian scientists on Alzheimer's, and mentioned earlier American work:

Earlier work by Dr. Lee Goldstein of Boston University showed that amyloid, the protein that makes up Alzheimer's brain plaque, can be measured in the lens of the eyes of some people with the disease, particularly Down syndrome patients who often are prone to Alzheimer's.

A company he holds stock in, Neuroptix, is testing a laser eye scanner to measure amyloid in the eyes. Goldstein praised the work by the Australian scientists.

Note the published US patent application 20040152068 titled Ocular diagnosis of Alzheimer's disease with abstract:

The invention features a method of diagnosing or providing a prognosis regarding the state of Alzheimer's Disease in a mammal by contacting an ocular tissue with a detectably-labeled compound, which binds to an amyloid protein. An increase in binding of the compound to the ocular tissue compared to a normal control level of binding indicates that the mammal is suffering from or is at risk of developing Alzheimer's Disease.

Priority goes back to 2000:

This application claims priority to U.S. provisional application 60/427,153, filed Nov. 18, 2002 and to U.S. provisional application 60/452,336, filed Mar. 5, 2003; is a continuation in part of U.S. Ser. No. 10/132,779, filed on Apr. 25, 2002, which claims priority to U.S. provisional application 60/287,124, filed Apr. 27, 2001; and is a continuation in part of U.S. Ser. No. 09/935,126, filed on Aug. 21, 2001, which claims priority to U.S. provisional application 60/226,590, filed on Aug. 21, 2000; the entire contents of which are hereby incorporated by reference.

***Also

See also; 20070038127, with first claim:

A method of diagnosing an amyloidogenic disorder or a predisposition thereto in a mammal, comprising detecting a polypeptide aggregate in a supranuclear or cortical region of an ocular lens, wherein an increase in the amount of said aggregate compared to a normal control value indicates that said mammal is suffering from or is at risk of developing an amyloidogenic disorder.

CBS Sunday Morning on July 17, 2011

Charles Osgood introduced the stories on Sunday Morning for July 17, 2011. A special edition: "animal attraction." Virtual animal kingdom. Jim Axelrod does the cover story on our very own pets. Generation of change in the way we treat our pets. Surrogate children. Our pet lives are becoming a family affair. Second story: Tree huggers. Third: Anthony Mason on Dean Koonce's dog Trixie. A dog's tale. Fourth: actress Isabella Rossellini. Wildlife of Isabella. Bill Geist talks about goldfish competition. Little Rusty.

Osgood then said: Let's go to the newsroom. Rebecca Jarvis did the news, starting with Casey Anthony's release. In London, Ruppert Murdoch. Rebekah has been arrested?? [Separately, British Police Arrest Rebekah Brooks in Phone Hacking ] Meeting over debt limit. Deadline is August 2. Carmegeddon on Interstate 405. Hugo Chavez headed to Cuba for cancer treatments. Glen Campbell in Biloxi, MS. [ Campbell's first performance since he announced he has Alzheimer's was at the IP Casino in Biloxi, Miss. See AP story. ] US and Japan women's soccer.

Charles Osgood introduced the stories for April 10, 2011 on CBS Sunday Morning. The general theme was "Animal attraction." The cover story is by Jim Axelrod on our pets )Petted Bliss). Second, Rita Braver talked about the koala. Third, Anthony Mason on Dean Koontz and his dog. Fourth, on Isabella Rossellini's interest in animals. Fifth, Bill Geist on the expanding role of goldfish competition.

Jeff Glor presented the news, starting with a wildfire in west Texas, next with Japan. Protestors in Cairo's central square. Death of Sidney Lumet at age 86. Masters golf tournament. Sunny and warm in most of the country.

A difference is that Rebecca Jarvis substituted for Jeff Glor as to the "today's news" segment, which segment on the usual "Sunday Morning" is done by Osgood.

A CBS poll revealed that 89% of us consider that pets are members of the family. 75% believe that pets share personality traits with their owners. Axelrod's piece included a segment with Axelrod's mother, and her dog.

Keyword: oxytocin

Opinion by Faith. As a child, had German short haired pointer named Kinder. Now, I'm a grownup and I don't want to pet your animal. Staph infection, cat scratch fever. Now, 2/3 of Americans own pets. People who are kinder to animals than to people.

Moment of nature on July 17, 2011, by Spiriva HandiHalier. A look at a few animal species considered endangered. Including riparian woodrat, pygmy owl, florida panther, attwater's prairie chicken, Mona Island iguana, short tailed albatross.

Saturday, July 16, 2011

Barbara Adams has been named general counsel of the Philadelphia Housing Authority ["PHA"]. One of the factors leading to her appointment was the large expenses incurred by the previous use by PHA of outside counsel.

The Philadelphia Inquirer reported:

Former Executive Director Carl R. Greene dismantled much of PHA's legal apparatus, outsourcing most work to the city's top law firms. From 2007 to 2010, PHA spent $38.5 million on outside legal services, an amount the U.S. Department of Housing and Urban Development's inspector general said was outrageous.

In an interview, Adams said one of her first tasks would be rebuilding PHA's law department and seeing what work that had been assigned to outside attorneys could be handled by staff.

"We will also take a fresh look and establish guidelines for how and when PHA uses outside counsel and clearly communicate what work can be billed by attorneys," she said.

After all, the first line of the post “You don’t know who you are until you know what you can do.” related to Burt Cooper defending Don Draper in observing that a man is who he is in whatever room he is in right now. To Burt, and to Don, Don was the man who was doing useful things, and not judged by the past that Pete Campbell had uncovered.

AND

the post's quote Because it is not about one’s educational pedigree, instead it is “proof of one’s capabilities.” relates to the portrayal of Don Draper in Mad Men, a man without any educational pedigree.

The post's punchline, however, was not that interesting: I would argue, that the next Don Draper is likely to be found on Twitter rather than on a college campus or on Madison Avenue.

While Don Draper commented that he had never written more than 200 words, that is still more than 150 characters, all of which is a lot less than one is going to find in a patent. One doubts that the Don Draper of Mad Men would have spent any time on Twitter.

In passing:

USPTO To Pay 3 Billions In Damages Over Invalid Patents which begins:Asatya, a Silicon Vally based firm with headquarters in India has won a lawsuit against USPTO. The court has fined USPTO US$ 3 billions for invalid software patents passed by the controversial body without proper examination.

As to fee diversion: Adequately funding the PTO is, by far, the most important feature of patent reform.

As to post-grant review (aka opposition), referenced to the Senate bill (S.24): Section 6, as to portions creating a third, unnecessary procedure called Post Grant Review to challenge patents in the PTO, requiring court-like trials on all validity defenses.

Newspapers tend to respond more intensely to evidence of plagiarism than do universities. Steve Penn of the Kansas City Star was fired for copying from press releases.

The Kansas City Star noted: In the normal editing process and a follow-up review, it was discovered that Penn had lifted material from press releases verbatim, in some cases presenting others’ conclusions and opinions as his own and without attribution. Editors found more than a dozen examples in Penn’s columns dating back to 2008.

An official for the newspaper wrote: “Unfortunately, in these instances over an extended period of time, Steve made some serious errors of judgment that we concluded were clear violations of our ethics policy. Regrettably, that means we must part ways.”

"Competition from social media reporting is creating so much angst within the traditional media, that who knows what's ethical or not." As if the existence of Wordpress, Twitter and Facebook had changed the definition of plagiarism.

There was a hint of --plagiarize with pride--> In some cases, a reporter can make a story his own without even stepping out of the office.

Friday, July 15, 2011

The ITC administrative law judge's initial determination was that HTC infringed on two of the 10 patents Apple had filed a complaint over in March 2010, according to an HTC statement. The ITC still needs to make a final ruling on the complaint. A loss carries the threat that HTC's products would be banned from coming into the U.S., and Apple only needs to get a favorable decision on one of the patents.

As indicated in the story, this is a decision by an administrative law judge at the ITC. The decision is reviewed by the ITC itself.

Reuters reported: "We are confident we have a strong case for the ITC appeals process and are fully prepared to defend ourselves using all means possible," said HTC General Counsel Grace Lei in an email statement.

At issue are phones that run Google's Android mobile operating system.

[Plaintiff's expert] posits that around $70 million, both [parties] would realize that they would be giving up too much if they held out any longer and would therefore agree to meet in the middle of the $0 to $138.7 million range. . . . The Court agrees that this analysis is not based in sound economic principles and factual predicates as required under the law. . .

KAT ASHARYA of mobiledia writes of the escalation of the Oracle / Google dispute:

The deposition request also comes days after Judge William Alsup's demand that Google answer questions on if the Mountain View, Calif.-based company may have known Android violated Oracle's Java patents, but continued anyway. Alsup's questions may indicate that Google stands on shaky legal ground, prompting Oracle be more confident of its case against Google.

Bonn University took away the doctorate of parliament member Jorgo Chatzimarkakis because of plagiarism.

Speaking on Germany's talkshow, Anne Will, in early July, 2011 Chatzimarkakis blamed practices he picked up at Oxford University, saying that at Oxford, "they phrase things somewhat differently. They intertexualise, that is they make texts readable."

The Guardian noted: Bonn's dean of philosophy, Günther Schulz, said the method the politician had used was simply not acceptable: "He didn't use quotations marks, so the reader thinks that he is reading a text by Chatzimarkakis, when actually more than half the text is from other authors."

IPBiz notes, if more than half the text is copied, can one rightly use the excuse of intertextualization?

Thursday, July 14, 2011

Some claims of PCT/US2011/020549 found unpatentable over US 20090299109

From 1967 on, Jack Webb's Dragnet popularized the text: “Anything you say can and will be used against you in a court of law.

In the "international search report" for PCT/US2011/020549 , claims 1-6 (among others) were found unpatentable over published US 2009/0299109.

The catch? Both PCT/US2011/020549 and US 20090299109 are to Gevo.

US 20090299109 (application serial number (12/327723 ) with inventors Gruber, Peters, Griffith, Obaidi, Manzer, and Taylor, was filed December 3, 2008 and published December 3, 2009. Correspondence is to COOLEY GODWARD KRONISH LLP.

The priority date for the PCT is January 8, 2010, corresponding to the filing of provisional application 61/293,459 . The PCT itself was filed on January 7, 2011. The listed inventors are Peters, Taylor, Jenni, Henton, and Manzer. The listed agent is Cooley LLP.

In passing, 35 USC 103(b) states:

(b)

(1) Notwithstanding subsection (a), and upon timely election by the applicant for patent to proceed under this subsection, a biotechnological process using or resulting in a composition of matter that is novel under section 102 and nonobvious under subsection (a) of this section shall be considered nonobvious if-

(A) claims to the process and the composition of matter are contained in either the same application for patent or in separate applications having the same effective filing date; and

(B) the composition of matter, and the process at the time it was invented, were owned by the same person or subject to an obligation of assignment to the same person.

(2) A patent issued on a process under paragraph (1)-

(A) shall also contain the claims to the composition of matter used in or made by that process, or

(B) shall, if such composition of matter is claimed in another patent, be set to expire on the same date as such other patent, notwithstanding section 154.

(3) For purposes of paragraph (1), the term "biotechnological process" means-

(A) a process of genetically altering or otherwise inducing a single- or multi-celled organism to-

(i) express an exogenous nucleotide sequence,

(ii) inhibit, eliminate, augment, or alter expression of an endogenous nucleotide sequence, or

(iii) express a specific physiological characteristic not naturally associated with said organism;

(B) cell fusion procedures yielding a cell line that expresses a specific protein, such as a monoclonal antibody; and

(C) a method of using a product produced by a process defined by subparagraph (A) or (B), or a combination of subparagraphs (A) and (B).

****Gevo has brought on board cellulosic expert Robert Wooley, Ph.D., as Vice President of Process Development. Wooley was the biomass technology leader at NatureWorks LLC, and technology manager for the biofuels program at the U.S. Department of Energy’s National Renewable Energy Laboratory (NREL).

Gevo CEO Gruber joined Gevo from Outlast Technologies, where he served as President and CEO. Prior to this, he was a founder and CTO of Cargill Dow/NatureWorks LLC, the first company to develop and successfully commercialize the renewable resource-based PLA (Polylactic Acid) to replace petrochemical plastics.

Inventor Henderson got no traction at the BPAI, losing out on both written description and obviousness.

Of written description, Henderson argued that his patent application, including the Specification and Drawings, disclose an integrated circuit. The BPAI response: we do not find that simply showing a circuit as a box equates to an integrated circuit.

Of obvious design choice, the BPAI noted:

We note that making elements of a device integral or separable is considered to be an obvious design choice and does not render an invention patentable. See In re Larson, 340 F.2d 965, 968 (CCPA 1965); In re Dulberg, 289 F.2d 522, 523 (CCPA 1961).

KSR was cited as to combining KNOWN elements:

Thus, combining each of these elements into a single unit represents nothing more than a combination of known devices, which when combined yield the predictable result of an integrated read-reset circuit. KSR Int’l v. Teleflex, Inc., 550 U.S. 398, 416 (2007).

**Recall the citation to Translogic made by the CAFC in the Kimberly-Clark case:

See In re Translogic Tech., Inc., 504 F.3d 1249, 1259 (Fed. Cir. 2007) (“[O]bvious variants of prior art references are themselves part of the public domain.”).

Unwiredview notes: All of Google’s Android partners are under rapidly growing pressure from multiple patent holders, claiming that Android devices infringe on this patent or that, demanding licensing fees. And, more often then not, Google seems to be content to watch it’s partners struggle from the sidelines , filing occasional brief in their defense, but refusing to commit real cash to cover legal costs or provide guaranties/insurance against damages, if Android is found to be infringing.

To get into the cross-licensing deal-making game, one needs patents the other guy wants. And, hiring six people won't solve the Android litigation problem. Google's initial law firm in the Oracle matter was King & Spalding, and later included Keker & van Nest LLP. See Google hires third law firm to defend against Oracle

It was a bit surprising that a litigation firm advised a client to enter into a settlement agreement to arbitrate the dispute and to forego further discovery. One might ask on which planet this happened, but the case is in Cook County.

Wednesday, July 13, 2011

C&EN obtained documents on the Bengu Sezen matter through a Freedom of Information Act [FOIA] request and published an article on 11 July 2011. The article included the text:

Worse, the reports document the toll on other young scientists who worked with Sezen: “Members of the [redacted] expended considerable time attempting to reproduce Respondent’s results. The Committee found that the wasted time and effort, and the onus of not being able to reproduce the work, had a severe negative impact on the graduate careers of three (3) of those students, two of whom [redacted] were asked to leave the [redacted] and one of whom decided to leave after her second year.”

In this matter, the reports echo sources from inside the Sames lab who spoke with C&EN under conditions of anonymity when the case first became public in 2006. These sources described Sezen as Sames’ “golden child,” a brilliant student favored by a mentor who believed that her intellect and laboratory acumen provoked the envy of others in his research group. They said it was hard to avoid the conclusion that Sames retaliated when other members of his group questioned the validity of Sezen’s work.

When LBE was interviewed by Japanese public television about the fraud at Bell Labs by Jan Hendrik Schon, the Japanese were interested in the impact of the publication of false results on third parties, and the legal liability of Bell Labs therefore.

AND recall a comment on previous coverage by C&EN of the Sezen matter:

One person commented:

The story was news worthy enough to get in the print versions of Science and Nature but not C&E News. Most chemists do not read the electronic version of C&E News since all ACS members get the print version. Perhaps the editor of C&E News is trying to minimize the damage to Columbia and to JACS. Although this type of story is terrible for the people directly involved, it is a good reminder of potential problems for every one else.

See http://ipbiz.blogspot.com/2006/04/more-on-bengu-sezen-rogerio-lobo-re.html

In a post titled Chesapeake's Plan To Seed Natural-Gas Market Wins Praise Of Analysts, online wsj discussed Chesapeake's funding of $155 million for privately held Sundrop Fuels. Chesapeake's co-founder and chief executive, Aubrey McClendon, has pushed natural gas as a way to reduce oil imports. Here, the source of hydrocarbon is biomass, which is gasified to CO and H2. The Sundrop website notes:

Sundrop Fuels gasification technology almost instantly turns any plant material into synthesis gas, a mixture of carbon monoxide and hydrogen that is then converted into drop-in biobased “green gasoline”, diesel or aviation fuel using well-established commercial processes.

Our process is similar to conventional biomass gasification except for one major difference: We use radiation heat transfer to rapidly drive the extremely high temperatures needed to create the syngas that is then converted into advanced biofuels. At the center of our patented approach is the Sundrop Fuels RP Reactor™ , a radiation-driven biomass gasifier that generates temperatures of more than 1,300 degrees Celsius (2,372 degrees Fahrenheit).

A post at marketwatch stated: To be sure, Exxon Mobil’s Research and Engineering Company first commercialized its Methane-to-Gasoline technology about 23 years ago in New Zealand. But the fact that it’s turning up in a new biofuel effort illustrates the company’s role in developing new sources of fuel.

To be clear on this one, 23 years ago there was no Exxon Mobil, and the technology in question was developed by Mobil. US patent 7,022,888 gives some background:

A number of U.S. Pat. Nos. 3,928,483 (1975), 3,931,349 (1976), and 4,05,576 (1977), 4,046,825 (1977), and 4,138,440(1979), assigned to Mobil oil corporation disclosed process for the production of gasoline from methanol, other alcohol and ether, using shape selective ZSM-5 zeolite catalyst. A commercial plant based on Mobil's methanol-to-gasoline (MTG) process, involving production of methanol from methane via syngas route: methane steam reforming to syngas and syngas conversion to methanol, was also successfully operated in New Zealand in 1985.

A 14,500 barrel-per-day natural gas-to-gasoline plant started operating in New Zealand in 1985 and was on stream producing 87 octane unleaded gasoline until recently. In this process, natural gas was first converted to methanol via synthesis gas, followed by conversion of methanol to gasoline using a novel catalyst developed by Mobil in the 1970s. A portion of Mobills development efforts was funded by the Fossil Energy Program of the USDOE.

**As to Sundrop's technology, see for example published US application 20100237291, titled SYSTEMS AND METHODS FOR SOLAR-THERMAL GASIFICATION OF BIOMASS with abstract:

A method, apparatus, and system for a solar-driven chemical plant that may include a solar thermal receiver having a cavity with an inner wall, where the solar thermal receiver is aligned to absorb concentrated solar energy from one or more of 1) an array of heliostats, 2) solar concentrating dishes, and 3) any combination of the two. Some embodiments may include a solar-driven chemical reactor having multiple reactor tubes located inside the cavity of solar thermal receiver, wherein a chemical reaction driven by radiant heat occurs in the multiple reactor tubes, and wherein particles of biomass are gasified in the presence of a steam (H2O) carrier gas and methane (CH4) in a simultaneous steam reformation and steam biomass gasification reaction to produce reaction products that include hydrogen and carbon monoxide gas using the solar thermal energy from the absorbed concentrated solar energy in the multiple reactor tubes.

AND US 20100303692 with abstract:

A method, apparatus, and system for a solar-driven chemical plant are disclosed. Some embodiments may include a solar thermal receiver to absorb concentrated solar energy from an array of heliostats and a solar-driven chemical reactor. This chemical reactor may have multiple reactor tubes, in which particles of biomass may be gasified in the presence of a carrier gas in a gasification reaction to produce hydrogen and carbon monoxide products. High heat transfer rates of the walls and tubes may allow the particles of biomass to achieve a high enough temperature necessary for substantial tar destruction and complete gasification of greater than 90 percent of the biomass particles into reaction products including hydrogen and carbon monoxide gas in a very short residence time between a range of 0.01 and 5 seconds.

Reuters reported: Richard "Chip" Lutton Jr., who manages Apple's patent portfolio, recently hit his 10-year mark at the company and decided it was time to try something else, according to a source familiar with Lutton's thinking.

Lutton has a JD from Columbia, class of 1993. was an Assistant General Counsel for Intellectual Property at Sun Microsystems, Inc., and an attorney at Arnold, White & Durkee (now Howrey Simon Arnold & White) in its Menlo Park, California and Houston, and clerked for Judge Rader at the CAFC.

Lutton was mentioned in the Patently-O post titled Where is the Next Federal Circuit Judge?. So was Kathleen O'Malley (N.D.Ohio, appointed thereto by Clinton), who was nominated for the CAFC position by Obama.

BJ Watrous appears in line to replace Lutton. Watrous obtained his JD from the University of California, Los Angeles in 2000 and his BA from Pomona College in 1993.

**An article in PCMag noted Apple received a patent on the iPhone's capacitive touch screen ( 7,966,578) which some lawyers found to be dangerously broad. An expert cited was Florian Mueller, "an award-winning intellectual property activist. " Wikipedia notes of Muller: Florian Müller (born January 21, 1970 in Augsburg, Germany) is a lobbyist, author, entrepreneur, consultant, and the founder of the NoSoftwarePatents campaign. He is a high school graduate who attended Karlsgymnasium Pasing.[1] He blogs frequently about patent issues and gives legal advice.[2]

The patents asserted: 5,963,481: “Embedded enhanced DRAM, and associated method”5,654,932: “Memory devices with selectable access type and methods using the same”5,982,696: “Memories with programmable address decoding and systems and methods using the same”5,500,819: “Circuits, systems and methods for improving page accesses and block transfers in a memory system”5,687,132: “Multiple-bank memory architecture and systems and methods using the same”

But skeptics say Kate's hosed-up look has less to do with her own invention and more to do with protocol. It's an unwritten rule that royal ambassadors and guests attend events dressed to make the queen proud: closed-toed shoes, mid-length skirts and pantyhose. Lady Di’s sheer stockings (DKNY’s were her brand of choice) were such a staple of her regal look, they were incorporated into replica Franklin Mint dolls. Carla Bruni-Sarkozy, a former cutting-edge catwalker, has been spotted at official events in the less-than-edgy hose. Even Kate’s sister Pippa Middleton, a by-proxy royal, has been spotted in the sheer legwear.

On a recent royal visit, Tom Hank’s wife, Rita Wilson complained that she was required to wear hosiery for an event at Buckingham Palace, sparking murmurs of a palace dress code. “Women must wear closed-toed shoes – and get this: stockings! Sheer disbelief – I don’t even own a pair of sheer hose,” she told Harper’s Bazaar.

If the creation of the public database is permitted by OMB, it will be a milestone in the NIH’s program of research at medical schools and universities. If, on the other hand, the OMB nixes that requirement from the proposal, it would undermine the integrity of medical research supported by the NIH.

Here's where it gets complicated. When McAdoo's attorney filed the suit [against the NCAA], he included as evidence the paper in question. This week, The Raleigh News and Observer posted the case's attached exhibits on its website. That's when a few bored N.C. State fans began Googling. In the process, they found that McAdoo had pasted large passages word-for-word from sources available on the Internet. Blog SportsByBrooks.com picked up the story, and it spread from there. Will the plagiarism sink McAdoo's case? His attorney says no, but it certainly seems to muddle matters.

McAdoo received an F in the course, just as Joe Biden did at Syracuse Law many years ago when Biden was caught plagiarizing. There the similarity ends.

Shaleionaires - While some complain that extracting natural gas from shale rock formations is tainting their water supply, others who have allowed drilling on their property are getting wealthy and becoming "shaleionaires." Lesley Stahl reports. Shachar Bar-On and Meghan Frank are the producers. Watch it now

Stand Down - Some veterans returning from Iraq or Afghanistan into the recession are finding themselves homeless. Scott Pelley reports on an annual encampment in San Diego where veterans can find hope, help and services. Henry Schuster is the producer. Watch it now

Market Street - Morley Safer reports on a mystery that was solved about a 100-year-old film that we now know was made on San Francisco's Market St. just days before the 1906 earthquake. David Browning is the producer. Watch it now

CBS Sunday Morning on July 10, 2011

Charles Osgood introduced the stories for July 10, 2011. He first mentioned the death of Betty Ford. She occupies a special place. John Blackstone does a look back. He started by mentioning her addiction to pain killers and alcohol. "Over the Moon" by Mo Rocca was the second story mentioned. An out of this world crime. Third, was Mark Phillips on Tom Jones. Tom Jones at age 71. This story is recycled. Fourth, Bill Geist on "To the Point," a recycled story from previous. Vegetable orchestra was also recycled.

Headlines: Negotiations in Washington on the debt ceiling. Japan hit by 7.0 earthquake. NYT reports possible suspension of aid to Pakistan. Leon Panetta in Afghanistan. Republic of South Sudan. Colin Powell was there. 7 missing Americans in Sea of Cortez. Derek Jeter. Running of the bulls. Weather: hot in some places. very hot in others.

Betty Ford was a first lady like no other. Blackstone on Betty Ford: a woman of openness and honesty. "60 Minutes" interview with Morley Safer in 1975. Walter Cronkite clip on Roe v. Wade. Things that were taboo in 1970's. On Gerald: he still enjoys pretty girls. Betty Ford on her breast cancer and mastectomy. Lesley Stahl on "60 Minutes" in 1997. The more she talked the popular she became. Cronkite on 1976 election results. The growing addiction to pain killers and alcohol. By 1978, her addiction could no longer be ignored. Intervention. Used her own experience to give to others. "Betty Ford Treatment Center." Last public appeareance: Gerald Ford's funeral. She was a woman strong enough to acknowledge her weakness.

Almanac. July 10, 1040. Lady Godiva bareback ride through Coventry. 1955 film with Maureen O'Hara. Peeping Tom. Song by Peter and Gordon. Seinfeld episode. Ride in Tampa in 1993. Osgood does poem ending in "was that lady-like?"

Martha Teichner on "striking a gourd," a story recycled from a previous "Sunday Morning." Indianapolis Museum of Art. Veg. orchestra formed in 1998. Thirteen years later, still going on. Half the fun is in inventing new instruments. The microphones are really important. The eggplant channel and the zucchini channel. 70 pounds of vegetables per concert. Every day noises are filled with music.

Osgood on the current Atlantis mission. Leading to the "Over the Moon" story by Mo Rocca. Between 1969 and 1972, 12 men landed on the moon. Thad Roberts story. NASA's co-op program for potential astronauts. Student at the University of Utah. Risk taker and rule breaker. Ben Mezrich book on Roberts. NASA moon rocks of Everett Gibson. In all, NASA has 842 pounds of moon rock. Loaded safe on dolly and wheeled it out. 101g of stuff worth $21 million. 22 year old Tiffany Fowler. Use money to fund science that might change the world. Axel Emmermann was the potential buyer. Axel noted: A crime is a crime, no matter how you put it. On July 20, 2002, Pat and Tiffany went to Orlando for sale. Sex on moon rocks. See also Sex on the Moon : Roberts was fortunate enough to be accepted into NASA’s Cooperative Education Program at Johnson Space Center in Houston. Leaving his wife in Utah, Roberts remade himself and became a leader among the other “co-ops,” viewed as an adventurer and risk-taker. While fascinated by what the co-op program allowed him to do, Roberts was particularly intrigued when one of his mentors told them that the lunar material in his safe was considered “trash” by NASA because they had been used for experiments and outside the agency.

Casey Anthony trial: Jury of 7 women/5 men: just under 11 hours of deliberation. HLN: had 4,475,000 viewers when verdict announced. Release on 1007th day of imprisonment.

Rupert Murdoch; Journal piece on "News of the World." 168 years of Sunday scoops. Murdoch bought it in 1969. Millie Dower.

Ben Tracey in Los Angeles on Duke and Duchess of Cambridge in Los Angeles. LA is an odd choice for first US visit. One item on the agenda: job fair for veterans.

Moment of nature (spiriva): eastern Ohio. Pina Toomey (?) reservoir. [IPBiz guesses this was about Lake Pina in Columbiana County, Ohio. ] Lisbon is the county seat of Columbiana County, and has Civil War significance. From wikipedia: Lisbon has the distinction of being the northernmost western town involving military actions during the American Civil War. Confederate cavalry officer John Hunt Morgan surrendered to Union forces near here at the end of his raid into Indiana and Ohio. [Notice the qualification about northernmost WESTERN town.] Wikipedia also notes: The St. Albans Raid was the northernmost land action of the American Civil War, taking place in St. Albans, Vermont on October 19, 1864. And note the coincidence: Bennett H. Young led Confederate States Army forces in the St. Alban's Raid. Young had become a prisoner of war after the Battle of Salineville in Ohio ended Morgan's Raid the year before.

About Me

I'm a patent lawyer located in central New Jersey. I have a J.D. from the University of Chicago and a Ph.D. from Stanford University, where I studied graphite intercalation compounds at the Center for Materials Research. I worked at Exxon Corporate Research in areas ranging from engine deposits through coal and petroleum to fullerenes. An article that I wrote in The Trademark Reporter, 1994, 84, 379-407 on color trademarks was cited by Supreme Court in Qualitex v. Jacobson, 514 US 159 (1995) and the methodology was adopted
in the Capri case in N.D. Ill. An article that I wrote on DNA profiling was cited by the Colorado Supreme Court (Shreck case) and a Florida appellate court (Brim case). I was interviewed by NHK-TV about the Jan-Hendrik Schon affair. I am developing ipABC, an entity that combines rigorous IP analytics with study of business models, to optimize utilization of intellectual property. I can be reached at C8AsF5 at yahoo.com.